Bodak v. Masotti

540 A.2d 719, 14 Conn. App. 347, 1988 Conn. App. LEXIS 165
CourtConnecticut Appellate Court
DecidedMay 3, 1988
Docket5576
StatusPublished
Cited by4 cases

This text of 540 A.2d 719 (Bodak v. Masotti) is published on Counsel Stack Legal Research, covering Connecticut Appellate Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bodak v. Masotti, 540 A.2d 719, 14 Conn. App. 347, 1988 Conn. App. LEXIS 165 (Colo. Ct. App. 1988).

Opinion

Stoughton, J.

The plaintiffs appeal from a judgment rendered on a jury verdict in favor of the defendant. We find no error.

The plaintiffs claim that the court erred (1) in failing to set aside the verdict because improper comments [348]*348by defense counsel induced the jury to reach its conclusion through speculation, surmise or conjecture, (2) in denying the plaintiffs’ motion in limine and permitting cross-examination which exceeded the scope of direct examination of a witness, (3) in excluding evidence of an alleged spontaneous utterance of a witness, (4) in excluding testimony by the minor plaintiff as to an alleged spontaneous utterance by him, and (5) in its charge permitting the jury to consider a special defense raising a violation of General Statutes § 14-222 as applied to the minor plaintiff, who was racing his bicycle.

This action arose out of a collision which occurred on August 23,1982, at a T-intersection in Bristol between a bicycle being ridden by the minor named plaintiff, eight year old Troy Bodak, and a pickup truck being driven by the defendant. The trial was hotly contested and the evidence sharply disputed. From the evidence which was offered, the jury might reasonably have found the following facts.

Peck Lane is a public street in Bristol which runs north and south in the vicinity of its intersection with Maywood Lane. Maywood Lane is a dead-end street which runs east and west and intersects at its east end with Peck Lane. Maywood Lane slopes generally downward toward the intersection, and Peck Lane slopes upward to the south from the vicinity of the intersection. In that vicinity, the speed limit on Peck Lane is thirty miles per hour.

During the early afternoon of August 23, 1982, the defendant was driving his truck in a southerly direction along Peck Lane and travelling at twenty-five to thirty miles per hour. Troy Bodak and Marcel Dionne, another boy of about the same age, both of whom lived on Maywood Lane, were racing on their bicycles down Maywood Lane toward the intersection with Peck [349]*349Lane. The other boy was able to stop before entering Peck Lane, but Bodak skidded on some sand close to the intersection and his foot slipped off the pedal. He saw the truck as he entered the intersection, but he could not avoid it. The defendant did not see the bicycle before it entered the intersection and a collision occurred.

In a substitute complaint, the plaintiffs alleged that the defendant was negligent in that (1) he failed to yield the right-of-way to the bicycle, (2) he operated his vehicle recklessly, (3) he failed and neglected to keep his vehicle under proper control and turn his vehicle, (4) he was inattentive and failed to keep a proper lookout, and (5) he operated his vehicle at a greater speed than was reasonable.

The defendant, by way of special defense, claimed that the minor plaintiff was negligent, reciting substantially similar specifications of negligence.

After a trial, the jury returned a verdict for the defendant. The plaintiffs moved to set aside the verdict, and this appeal followed the denial of their motion.

I

The plaintiffs’ first claim is that the trial court ought to have set aside the verdict because the jury could not have found for the defendant except through speculation induced by improper comments of counsel. The thrust of the plaintiffs’ argument is that the testimony of the plaintiffs was credible, while the credibility of the defendant had been destroyed. Arguing from that premise, a most infirm foundation given the unquestioned right of the jury to determine credibility, the plaintiffs assert that the defendant introduced facts not in evidence during his argument to the jury. This tactic, say the plaintiffs, required that the court issue a [350]*350curative instruction which was more detailed than its general admonition to disregard matters not in evidence.

Practice Book § 4065 (d) (2) provides that when error is claimed in a case, the brief or appendix shall include the objection, the ruling, any exception and a statement of any relevant evidence where necessary to understand the ruling. It is not enough simply to refer in the brief to pages of the trial transcript. Shenefield v. Greenwich Hospital Assn., 10 Conn. App. 239, 243, 522 A.2d 829 (1987). We will not ordinarily consider claimed errors on the part of the trial court unless it appears that the question was distinctly raised at the trial and was ruled upon adversely to the appellant’s claim. State v. Simms, 170 Conn. 206, 208, 365 A.2d 821, cert. denied, 425 U.S. 954, 96 S. Ct. 1732, 48 L. Ed. 2d 199 (1976). The reason for this rule is so that the trial court may be alerted to an error while there is time to correct it. State v. Rogers, 9 Conn. App. 208, 212, 518 A.2d 399 (1986), cert. denied, 202 Conn. 806, 520 A.2d 1288, cert. denied, 481 U.S. 1051, 107 S. Ct. 2185, 95 L. Ed. 2d 841 (1986).

The plaintiffs in their brief have quoted only one remark from the defendant’s argument: “We call this a dart out . . . somebody darts out from between two parked cars.” The full quotation is as follows: “This is an unfortunate accident. This is what we call a dart out. Somebody darts out from an intersection; somebody darts out from between two parked cars.” The plaintiffs did not object to this argument at the time it was made, nor did they complain about it at the conclusion of the arguments. After a discussion between court and counsel, the plaintiffs’ counsel said specifically: “We have avoided the — we call this a duck out case.” The plaintiffs’ claim has not been properly preserved for review, but even if it had been, we do not consider it to be of merit.

[351]*351After the arguments had taken place, there was an off-the-record conference between the court and counsel concerning the charge to be given. It is obvious that the trial court attempted to resolve some of the conflicting claims made by counsel at this conference. Thereafter, the court entertained comments on the record, and counsel for the plaintiffs complained that during argument counsel for the defendant brought up a formula which was confusing and improper, and the plaintiffs’ counsel said: “[Tjhat’s what we objected to . . . .” We take this to be an objection to a portion of the defense counsel’s argument, although the record is far from clear on this point. The objection was that no expert had testified to the time it would take a vehicle to travel a particular distance.

During his argument to the jury, the defense counsel made the following observation: “Now, we’ll talk about measurements, ok? If you can do long division, and I’m sure you all can, and you take 5280, which is how many feet is in a yard, and divide it by 60, which is 60 miles an hour, you can discover that a vehicle going 60 miles an hour, covers 88 feet in a second. And a truck or car going half that speed covers half that distance, 44 feet in a second. Now, we know, at least we have uncontradicted testimony, that Mr. Masotti said he was going 25 to 30 . . . .” It is true that this is confusing because it uses “yard” where it should have used “mile,” and because it omits some steps in the calculation. Nevertheless, it is a familiar formula and reaches a correct result.

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Cite This Page — Counsel Stack

Bluebook (online)
540 A.2d 719, 14 Conn. App. 347, 1988 Conn. App. LEXIS 165, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bodak-v-masotti-connappct-1988.